California Workers' Comp Case Roundup (1/20/2017)

CALIFORNIA COMPENSATION CASES

Vol. 81 No. 12 Dececember 2016

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

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Supreme Court Case Not Originating With Appeals Board

Kesner v. The Superior Court of Alameda County; Kesner v. Pneumo Abex, LLC; Haver v. BNSF Railway Co., Lexis Advance

Negligence—Duty of Care—Asbestos—Take-Home Exposure—California Supreme Court, reversing judgment of Court of Appeal in one case before it, vacating judgment of Court of Appeal in other case before it, and remanding both cases, held that duty of employers and premises owners to exercise ordinary care in use of asbestos includes preventing exposure to asbestos carried by bodies and clothing of on-site workers, that, when it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from premises to household members, employers have duty to take reasonable care to prevent this means of transmission, and that this duty’s applicability to premises owners who use asbestos on their property is subject to any exceptions and affirmative defenses generally applicable to premises owners, such as rules of contractor liability, when California Supreme Court found that each plaintiff who brought present two actions (now consolidated), and who subsequently died from effects of mesothelioma, caused by inhalation of asbestos fibers, was member of household in which another member was exposed to asbestos at work, that Supreme Court was tasked solely with deciding whether defendant employers had legal duty to…

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Appellate Court Compensation Cases

Capital Builders Hardware, Inc. v. W.C.A.B. (Gaona, Robert), Lexis Advance

Petitions for Writ of Review—WCAB Decisions—Finality—Court of Appeal held that WCAB decisions being appealed, namely, WCJ’s denial “without prejudice” of defendant’s motion to strike medical report, followed by WCAB’s dismissal and denial of defendant’s petitions for removal and reconsideration, did not constitute final decision and, thus, was not appealable, when Court of Appeal found that…

Gage (Rebecca) v. W.C.A.B., Lexis Advance

WCAB Jurisdiction—Advance Disability Pension Payments—Penalties—Court of Appeal, annulling WCAB decision and remanding to WCAB for determination of whether Labor Code § 5814 penalties are appropriate in this case, held that WCAB has jurisdiction to impose penalties under Labor Code § 5814 for unreasonable delay or denial of advance disability pension payments, available under Labor Code § 4850.4 to local peace officers disabled on job, when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

Advent, Inc. v. National Union Fire Insurance Co. of Pittsburgh, PA, Lexis Advance

Liability Insurance—Equitable Contribution—Motions for Summary Judgment—Burdens of Proof—Court of Appeal, affirming trial court’s denial of one insurer’s motion for summary judgment and granting second insurer’s motion for summary judgment, held that trial court correctly allocated burdens of proof between insurers’ opposing motions for summary judgment, when Court of Appeal found that…

Khosh v. Staples Construction Co., Inc., Lexis Advance

Injury AOE/COE—Subcontractor’s Employee—Hirer’s Liability—Court of Appeal, affirming trial court’s grant of summary judgment against injured employee, held that, because injured employee, plaintiff, failed to present evidence that his employer’s hirer, defendant, affirmatively contributed to plaintiff’s injuries, there were no triable issues of material fact on plaintiff’s theory that one of two exceptions applied, retained control exception or nondelegable duty exception, to avoid general rule that employee of independent contractor may not recover tort damages for work-related injuries from contractor’s hirer, when Court of Appeal found that…

Rolfes v. Mei, Lexis Advance

Civil Actions Against Employers—Uninsured Employers—Presumption of Negligence— Court of Appeal held that defendant did not rebut presumption of negligence of Labor Code § 3708, when Court of Appeal found that defendant owned 33-unit apartment complex, that plaintiff worked for employer as assistant manager and later manager and also lived in complex, that employer made deductions from plaintiff’s monthly rent in exchange for his duties, that in 9/2010 plaintiff was working as manager and received deduction for entire rent in exchange for his duties pursuant to…

Civil Actions Against Employers—Employment Relationships— Apartment Managers—Wages in Lieu of Rent—Failure to Pay Minimum Wages—Court of Appeal held that defendant employer did not pay plaintiff minimum wages, and that exception from Industrial Welfare Commission, wage order no. 5-2001, 8 Cal. Code Reg. § 11050, permitting employers to deduct part of rent in exchange for apartment manager duties, did not apply because written agreement to make such deduction was required and there was no such written agreement between employer and plaintiff, when Court of Appeal found that…

Civil Actions Against Employers—Pay Stubs—Court of Appeal held that employer violated requirement of Labor Code § 226(a) to give plaintiff pay stubs that indicated hours worked, gross earnings, deductions, and net earnings, and that exception of Labor Code § 226(d) did not apply…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Hon. Jacqueline C. Duncan, Susan Hamilton, and James Pettibone recommended the following writ denied cases for summarization in this issue.

California Insurance Guarantee Association v. W.C.A.B. (Claiborne, Dorothy), Lexis Advance

Petitions for Writ of Review—Final Orders—Court of Appeal dismissed Petition for Writ of Review filed by California Insurance Guarantee Association challenging WCAB’s order rescinding WCJ’s finding that…

Grossman Medical Group v. W.C.A.B. (Rus, Ioan), Lexis Advance

Medical Liens—Official Medical Fee Schedule—WCAB affirmed its prior decision, Rus v. California Facilities & Equipment Maintenance Company, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 249 (Appeals Board noteworthy panel decision), that lien claimant...

Target Corp. v. W.C.A.B. (Estrada, Fidel), Lexis Advance

Permanent Disability—Apportionment—WCAB affirmed WCJ’s finding that applicant team leader/laborer’s industrial injury to his low back, neck, left knee, shoulders, lower extremities, thoracic spine, left elbow, left forearm, left wrist, stomach, psyche, and in forms of sleep disturbance, diabetes, and hypertension from 1989 through 5/17/2010, caused 100 percent permanent disability “in accordance with the fact” pursuant to Labor Code § 4662(b), and that there was no substantial evidence to justify apportionment of applicant’s permanent disability to nonindustrial factors under Labor Code § 4663, when WCAB reasoned that…

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Other WCAB Decisions Denied Judicial Review

Clorox Products Manufacturing v. W.C.A.B. (Romero, Emilio, Dec’d), Lexis Advance

Petitions for Writ of Mandate—Dismissal at Request of WCAB—Issues Resolved by New WCAB Decision—Petitions for Removal—Court of Appeal dismissed petition for writ of mandate at request of WCAB, when petitioner filed petition for removal related to WCJ’s 4/15/2016 order allowing parties to take second deposition of panel qualified medical evaluator, WCAB dismissed petition…

Escamilla v. W.C.A.B. (Johnson, Rubie), Lexis Advance

Petitions for Reconsideration—Dismissal—Successive Petitions—Sanctions—WCAB dismissed petition for reconsideration as successive petition under Navarro v. A & A Farming (2002) 67 Cal. Comp. Cases 296 (Appeals Board en banc opinion), in which petitioner Escamilla was seeking reconsideration of previous WCAB decision after reconsideration imposing sanctions on petitioner and ordering petitioner to pay attorney’s fees, after WCAB found that...

Glendale Adventist Medical Center v. W.C.A.B. (Abramian, Jackie), Lexis Advance

Permanent Disability—Rating—Application of 1997 Schedule for Rating Permanent Disabilities—WCAB awarded applicant 83 percent permanent disability, after apportionment, among other benefits, for applicant certified nursing assistant’s 7/28/2004 industrial injury to right forearm, right wrist, both knees, gastrointestinal/GERD, headaches, psyche, and left and right shoulders, with WCAB’s permanent disability rating based on applicant’s credible testimony, medical opinions from four physicians, rating instructions, recommended rating from Disability Evaluation Unit, cross-examination of Disability Evaluation Unit rater, and 1997 Schedule for Rating Permanent Disabilities, when WCAB found that…

Grainger v. W.C.A.B. (Powers, Franklin and O’Donnell, Lawrence), Lexis Advance

Petitions for Reconsideration—Non-Final Orders—Withdrawal of Attorney in Multiple Defendant Claims—WCAB dismissed petition for reconsideration of WCJ’s order at 12/16/2015 mandatory settlement conference denying petitioner’s request to be relieved as attorney of record for Claims Reserve Management in industrial injury claims of two applicants (Powers and O’Donnell), because (1) petition was successive petition, and (2) WCJ’s order…

Rockford Corp. v. W.C.A.B. (Morgan, Paul), Lexis Advance

Permanent Total Disability—Apportionment—WCAB awarded applicant laborer 100 percent permanent disability, without apportionment, based on opinions from panel qualified medical evaluator and vocational rehabilitation counselor, for applicant’s 3/30/2009 industrial injury to his low back and lower extremities, which occurred from lifting heavy piece of concrete weighing approximately 150 pounds, when WCAB found that…

Appeals Board Panel Decisions

Azoulay (Avi) v. City of Orange, Lexis Advance

Presumption of Industrial Causation—Blood-Borne—Infectious Diseases—Peace Officers—WCAB, reversing WCJ, held that applicant suffered presumptively compensable injury AOE/COE in form of blood-borne infectious disease while employed as juvenile correction officer during period 7/1/2001 through 6/11/2012, when agreed medical examiner, Dr. Green, testified that applicant's blood infection was caused by bacteria that traveled to applicant's bloodstream from ruptured diverticula (caused by non-industrial diverticulitis) in applicant's colon, and WCAB concluded that…

Beltran (Juan) v. Structural Steel Fabricators, Lexis Advance

Supplemental Job Displacement Benefits——Settlement—Thomas Findings—WCAB rescinded WCJ's Order Approving Compromise and Release which disallowed parties' agreement to settle any claim applicant laborer may have to Supplemental Job Displacement Benefit voucher under Labor Code § 4658.7, in connection with applicant's industrial cumulative trauma to his head and back over period 10/20/2013 to 10/20/2014, when WCAB found that…